This division of the Master's office supervises the administration of the affairs of persons whose property is, for various reasons described in this section, under the control of another person called a curator or tutor. Click on the links below for more information of various aspects.
The new Mental Health Care Act 17 of 2002 was promulgated on 15 December 2004. The new act will replace the 1973 one. The new act came into immediate effect as from Wednesday 15 December 2004.
The various appointments set out above as well as the requirements for each appointment will be dealt with separately.
The Curatorship section is a division within the Master of the High Court.The main function of the section is to provide efficient, cost effective and specialized services of supervision in estates of minors and mentally challenged persons in South Africa. The Curatorship Section assists a huge variety of people from all walks of life, i.e. minors, persons incapable of managing their own affairs – such as – People with brain injuries, i.e. a motor vehicle accident or a stroke; intellectual disabilities; mental illness, dementia; Alzheimer decease etc.This section supervises the administration of estates in which applications are lodged to appoint a Curator Bonis; Curator Personae; and Administrators in terms of the Mental Health Care Act; Tutors for minors, as well as Curator Bonis in Asset Forfeiture Matters.
There are two procedures in terms of which someone can be appointed to administer the estate of a person who is found to be incapable of managing his or her own affairs. These procedures are the common law procedure for the appointment of a curator that requires an application to the High Court, and the procedure for the appointment of an administrator as set out in the Mental Health Care Act, 17 of 2002.
COMMON LAW: Appointment of a Curator Bonis in terms of our common law:
The High Court may declare a person incapable of managing his or her own affairs, and may appoint a curator to the person and/or property of such person. The procedure for this application is set out in Rule 57 of the Uniformed Rules of the High Court.
Any person who wishes to bring an application to the court for an order declaring another person to be of unsound mind and incapable of managing his/her own affairs and appointing a Curator to the person or property of such persons must first apply to court for the appointment of a Curator-ad-Litem.
MENTAL HEALTH CARE ACT APPLICATION:
In terms of the Mental Health Care Act the Master of the High Court may on consideration and processing of the prescribed application, appoint an administrator to manage the property of a person who has been positively diagnosed as mentally ill or a person with severe or profound intellectual disability.
The difference between the two applications are that the common law application is applicable to any situation where the person becomes incapable of managing his/ her own affairs, whereas this application can only be utilized if the person has a mental illness or a severe or profound disability
POWERS AND RESPONSIBILITIES OF A CURATOR AND ADMINISTRATOR:
The powers of a Curator Bonis and an administrator is basically to administer the estate of the person who is incapable, which could include the following for instance:
These powers are usually subject to the prior consent and approval of the Master.
The Curator Bonis and administrator are obliged to lodge a yearly administration account with the Master, which sets out the income, expenses and value of the capital assets of the estate. The Master scrutinize these accounts to verify the income, expenses and capital assets and to ensure that if security is provided it is amended according to the value of the estate.
The fees of a Curator Bonis and administrator are prescribed in the Administration of Estates Act. It is 6% on the annual income of the estate and 2% on the value of the capital assets of the estate at termination of the Curatorship. The Master may however reduce, disallow or increase the fees if special reasons exist.
APPOINTMENT OF A CURATOR FOR AN ABSENT PERSON:
It sometimes happens that a person disappears without trace, leaving property that must be cared for. Although the person may leave family members or friends behind, they are by law unable to administer any assets belonging to the missing person, unless they are authorized in terms of section 73 of the Administration of Estates to administer the assets as curator.
If it comes to the knowledge of the Master that any absentee is the owner of property in the Republic of South Africa, and he is satisfied that the said property should be cared for or administered on behalf of the absentee, he may appoint a Curator Dative. The appointment of a curator is usually initiated by an interested party who lodges a written application with the Master.
Requirements for an Appointment:
TERMINATION OF A CURATORSHIP MATTER:
A Curatorship is usually terminated at the death of the person who has been declared incapable of managing his/her own affairs, but the person under curatorship may also apply to the High Court to be released under Curatorship if the circumstances allow it – for example, the person has remarkably recovered from a stroke or a brain injury etc. It involves an application to the High Court and the process is prescribed in Rule 57 of the Uniform High Court rules.
TERMINATION OF THE ADMINISTRATION IN TERMS OF THE MENTAL HEALTH CARE ACT:
If a person in respect of whom an administrator has been appointed in terms of the Mental Health Care Act recovers from his or her mental illness to such an extent that he or she is once again capable of managing his or her own affairs, that person or the administrator or the applicant may apply to the Master of the High Court in terms of section 64 of the Mental Health Care Act to terminate the administration.
APPOINTMENT OF A CURATOR BONIS IN ASSET FORFEITURE MATTERS:
A Curator Bonis are appointed in these matters to seize and administrate the assets until the matter is finalized.
The Master assist with the appointment of a Curator Bonis and the taxation of his/her fee when the matter has been finalized.
In terms of the Prevention of Organised Crime Act, 121 of 1998, the High Court may issue an order authorizing the seizure of property subject to a restraint or preservation order, or may issue an asset forfeiture order, where the court is satisfied that there are reasonable grounds to believe that the property concerned, or the proceeds thereof, was derived, received or retained, directly or indirectly, in connection with, or as a result of, any unlawful activity.
Where the court has authorized the attachment of such assets by the Asset Forfeiture Unit, it appoints a curator to administer the assets. The appointed curator, however, has no authority to act as such until duly authorized by the Master. Authorization takes the form of letters of appointment issued by the Master.
Requirements for an Appointment:
A tutor or curator may also be appointed over the estate of a minor if necessary. A child or minor is defined in the Children’s Act as meaning a person under the age of 18 years.
In terms of section 17 of the Act a child, whether male or female, becomes a major upon reaching the age of 18 years. The general rule is that minors are under disability in that the law does not regard them as capable of managing their own affairs. Under normal circumstances it is the parents of the minor, who are also the minor’s natural guardians, who supervise the minor’s affairs and assists him or her legally where necessary, but sometimes it may happen that a minor has no natural guardian (for example where both parents are deceased), and that no parental responsibilities and rights have been granted to any other person either in a valid Will.
Where the minor’s property consists of cash and investments only it can be deposited into the Guardian’s Fund in which case no tutor or curator to the minor’s property is required, although a tutor or guardian to look after the person of the minor may be necessary.
It should however be noted that the Master does not have the power to appoint a tutor or guardian over the person of a minor. Only the High Court may do so.
Who may nominate or appoint a Tutor?
One must distinguish between three scenarios, namely
Although a tutor may be nominated or appointed by will or the court, the nominee/appointee has no authority to act as tutor until duly authorized by the Master. Authorization takes the form of letters of appointment issued to the designated person.
The three scenarios set out above as well as the requirements for each appointment will be dealt with individually.
Testamentary appointed Tutor
A parent or guardian of a minor may nominate a person to be appointed as a tutor over the assets and person of a minor in his/her Will.The nominated tutor must apply to the Master to be appointed, after the death of parent/s or guardian.
Only the following persons may validly nominate a tutor in their will:
Requirements for an appointment
Immovable property of a Minor
No natural guardian or tutor or curator may alienate or mortgage any immovable property belonging to a minor, unless he/she is authorized thereto by the Court or by the Master.
The Master may consider applications where the share of the minor in the immovable property is R250 000.00 or less. Above this amount requires a application to the High Court.
Court appointed Tutor
The court as the upper guardian of all minors may appoint a person as tutor of a minor to take care of the person of the minor and to administer the property of the minor.
It is usually an interested party who lodged the application to Court by way of Notice of Motion. On receipt of the application the court will usually appoint a curator-ad-litem to protect the interests of the minor and to investigate the merits of the application. Both the curator-ad-litem and the Master must lodge reports to the court
Once the court has granted the application and appointed a tutor, the Master must give effect to the court order by issuing letter of tutorship and thereby authorizing the appointed tutor to act.
Requirements for an appointment:
Tutor dative appointed by the Master
If it comes to the knowledge of the Master that any minor is the owner of property in the Republic of South Africa, which is not under the care of any guardian, tutor or curator, and he is satisfied that the property should be cared for or administered on behalf of such minor, he may appoint a tutor dative. (The Master cannot appoint a tutor dative over the person of a minor.)
The appointment of a tutor dative is usually initiated by an interested party who lodges a written application with the Master.
Requirements for an appointment: